Brief in Opposition to Petition for Writ of Certiorari — Brown v. Pennsylvania

Office-Supreme Court, U.S

FILED

MAY 6 1968

JOHN F. DAVIS, CLERK

* court of ‘the United States :

October Tae, 1967.

No. 1331.

REVELLE W. BROWN, et. al., TRUSTEES OF THE

ESTATE OF STEPHEN GIRARD,

Petitioners,

=

COMMONWEALTH OF PENNSYLVANIA, et. al.,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT .

OF APPEALS FOR: THE THIRD CIRCUIT.

Of Counsel: © ' CuAsies J. Bote,

DrinKER BDDLER & REATH, 1100 Phila. National Bank Building,

J. ALAN KUGLE; ~- Philadelphia, Pa. 19107

Henry S. HILLES, Jr., ° =

Dm. wonrk, Paxson, KALIsH, WILLIAM 1. CoLEMAN, IR.,

KORN & Levy, ~. 2500 The Fidelity Building,

Ropert W. MARIsSs. Philadelphia, Pa. 19109

g 5 Attorneys for Respondents.

MattTHEw W. Buttock, In.,

Second Deputy City Solicitor,

Epwarp G. BAuRR, In.,

City Solicitor,

Levy ANDERSON,

First Deputy City Solicitor,

_ 1500. Municipal Services Building,

Philadelphia, Pa. 19107

f * Attorneys for

8 a City of Philadelphia.

International, 711 So, 50th St., Phila., Pa. 19143—Tel. SA 7-871 Area Code 215

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INDEX.

Page

CouxrER STATEMENT OF QUESTION PRESENTED .......-+++-- 1

COUNTERSTATEMENT OF THE Caũũs . 3

REASONS FOR DENYING THE Wr 15.

I. Petitioners Have’ Presented No Cognizable Ground

Under This Court’s Rule 19(1) (b) for Granting aad

BOTOTE nv cccccescsccccsecccvegevecesecescoveees 15

II. There Is No Merit In. Any of Petitioners’ Five io

posed Reasons for Granting G66 ere e 16

A. Shelley v. Kraemer veteegeesdes Geveuses merees 16

B. Evans v. Newton 1 1 — * 9

„ BET cc Kcasccwsvevctciccevesees W

D. Burton Revisited :............ eee 18

E. The Effect of This Courts Earlier Mandate. 19

bbb : pee 2

APPENDIX: . a

Excerpts From Testimony of R. R. Randall, Direct Exam- ;

ination ...., 3422 ** nenne 1b

‘Excerpts From Minutes of Board of Trustees: .

April 21, 1911ii..qͥd „„ 2b

December 3, 1939899 n 4b

Letter of Judge Robert V. Bolger, Dated April 11. 1963 5b

Excerpts From Minutes of Board of Trustees : 3 ,

April 19, 19333333. n s

y ˙ĩ˙ſmĩ ».. . 6b

Debate in the Pennsylvania Senate on n Act of November 19,

| c neee 7b

Certificate Presented to John A. Diemand by the Judges of

the Orphans’ Court 9b

Table of Insurable’ Values: of —— of the Girard

AW ˙ V. f²̊ e n 10b

Letter of Joseph P. Gaffney, Attorney for the Board of City

True, Dated May 31, 1980

TABLE OF CITATIONS.

Cases: és. ee Page

Burton v. Wilmington Parking Authority, 365 UA. 715 18

Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) ............ 19

Estate of Clayton, No. 5702, Denver, Colo., bate Court

‘(March 16, 1967, not reported) 16

Evans v. Newton, 220 Ga. 280, 138 S. E. 2d 573 (1965) ...... 20

Evans v. Newton, 382 U. S. 296.......... 3 11, 12, 16, 17, 20

Girard Will Case, 386 - Pa. 548, 127 A. 2d 287 (1956) a

Hampton v. Jacksonville, 304 F. 2d 320 (5th Cir. 1962) ..... 19

Lombard v. Louisiana, 373 U. S. 260m q 18

n . ͤ 20

Mason v. City of Biloxi, 385 U. S. 370, reversing per curiam,

Oe Oc ON WN a oe ccc cnces 18, 19

Naim v. Naim, 197 Va. 734, 90 S. E. 2d 849 (1956) .......... 20

Satan v. Mtn er, eco cccnccccoccccssce ee

Naim v. Naim, 350.U. S. 988. F

Pennsylvania v. Board of Directors, 353. U. S. 230 16, 20

Peterson v. City of Greenville, 373 U. S. 244 1 0

Polites v. United States, 364 U. S. 4 2b eeeee 19

nenen. eee sees 15, 17

Robinson v. Florida, 378 U. S. 15333333. 18

Sweet Briar Institute v. Button, 387 U. S. 423, on remand, 12

Race Rel. L. Rep. 388 (1967) 77777 11, 13, 15, 16, 17

United States v. Carver, 260 U. S. 482 ............ „%

United States v. Schubert, 348 U. S. 2222222 19

Winsey v. Tate, Dec. Term, No. 946, C. P. Phila. (March 17,

1967, not reported) . ae

TABLE OF CITATIONS (Continued).

—

Statutes: Page

Act of March 24, 1832, P. L. 176 sete ele „6 „„ =

Act of March 24, 1832.§ 11, P. L.-182 05... .ccccccccees wee Oe

F, BE h ; 9

Act of May 3, 1832 § 18, P. L. 4233 0c cess eee ama

Act of March 14, 1846 §1, P. L. 125. 3 9 —ͤ—ͤ— 10

* Act of Feb. 27, 1047, P. Ei cc ccccecceccs bred: 9, 10

Act of April 2, 1852 § 4, P. L. 23ù))) 10

Act of April 20, 1853 § 6, P. L. 623 ..,....... eecevecsnceses 9

Act of June 30, 1869, P. L..1276 ....... ine aeeceltéhauetaenae

Act of May 23, 1887, P. L. 1688. „ ä —— bee 9

Act of November 19, 1959, P. L. 1526, Pa. Stat. Ann. tit. 20,

88 1144.1-1144.9 benseenaes VV — . 9,14

Supreme Court Rules: Page

r 185

h ² AAA 3

17177700000 5 3

U. S. Constitution: ca Page

Foutteenth Amendinent ..........s00ssccecsccesveees 5, 16

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supreme Court of the United States

Ocroszr Term, 1967.

No. 1331.

REVELLE W. BROWN, er AL, TRUSTEES OF THE

ESTATE OF STEPHEN GIRARD,

7 | Petitioners

5 .

COMMONWEALTH OF PENNSYLVANIA, er L.,

ge de scares Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT |

OF APPEALS FOR. THE THIRD CIRCUIT. _

COUNTERSTATEMENT OF QUESTION PRESENTED.

The District Court, after a full evidentiary hearing,

found that beginning in 1831 and continuing to date the

Commonwealth of Pennsylvania and the City of Philadel-

phia by the enactment of statutes and ordinances, by the

special supervision of public officials (appointed by legis-

‘lative and judicial bodies), by the rendering of services,

and by the providing of tax exemption and perpetual exist-

ence, have given aid, assistance and direction to the con-

struction, maintenance, operation and policies of Girard

College, including its racial policies, and that the present

8 Brief in Opposition to Petition

sui generis trustees of Girard College were appointed

sua sponte by the Orphans’ Court of Philadelphia solely

in order to permit continued exclusion of Negroes. The

record basis for these fact findings has not been contra-

vened. Therefore the question presented is: :

Did the Court of Appeals properly affirm the District |

Court’s legal conclusion, based on these facts, that the trus-

tees continued refusal to admit qualified Negro children

violated the equal protection clause of the Fourteenth oft

Amendment?

*

Brief in Opposition to Petition 8

_ COUNTERSTATEMENT OF THE CASE.

Petitioners’ statement sets forth the procedural history

of this litigation. Respondents do not agree with the gless

‘Petitioners have put on various procedural events and

decisions, but it is not necessary to burden the Court

with a restatement thereof. This Counterstatement of the

„Case therefore will be confined to the additional factual

background necessary to an understanding: of the legal

question presented!

Petitioners here denied admission to Girard College to

qualified Negro boys solely on the basis of their race. The

District Court, after three days of hearing the .

found as a fact:

„Beginning in 1831 and n to date, the

Commonwealth of Pennsylvania and the City of Phila-

delphia, by the enactment of statutes and ordinances,

by the use and supervision of public officials, appointed

by legislative and judicial bodies, by rendering serv-

ices and providing tax exemptions, perpetual existence

and exemption from tort liability, have given aid,

assistance, direction and involvement to the construc-

tion, maintenance, operation and policies of Girard

College (808a, 869a, 45⁵2² *),

1. Respondents do not — that the Petition conforms with >

this Court’s Rule 23{1)(e) which calls for “a concise statement of

the case containing the facts material to the consideration of the ques-

tions presented.” The Petition has wholly omitted the factual evi-

. dence which was the basis of the decisions of both courts below. This

is a sufficient ground in and of itself for denying the writ. See Su-

preme Court Rule 23(4). P

2. Page references proceeded by a large “A” are to the Appen-

dix to the Petition for Writ of Certiorari. Those followed by a small

“a” are to the separately bound two volume appendix. Those fol-

lowed by a small b“ are to the short appendix attached to this brief

(which contains relevant record documents n from the bound

appendix). 1

4 Brief in Opposition to Petition

Petitioners did not contend in the Court of Appeals and do

not contend here, as they could not, that this finding is not

supported by the evidence. The Court of Appeals held that

there i is full justification in the record’’ for such factual

finding (A57). In fact, as set out below, the evidence is

overwhelming.

In 1831 Girard, reciting that he had ‘‘sincerely at heart

the welfare of the City of Philadelphia,“ gave the residue

and remainder’’ of his estate“ to The Mayor, Aldermen

and Citizens of Philadelphia their successors and assigns

in trust’? for various municipal and charitable purposes

including the planning, construction and operation of

Girard College by the City of Philadelphia (44a). Clearly,

the gift to the City was made with an intention other than :

the acquisition of a perpetual trustee.* Clause XXI 9 of

his Will states:

“In relation to the organization of the college and

its appendages, I leave, necessarily, many details to the

Mayor, Aldermen and citizens of Philadelphia and

their successors; and I do so, with the more confidence,

as, from the nature of my bequests and the benefit to

result from them, I trust that my fellow citizens of

Philadelphia, will observe and evince especial care and

anxiety in selecting members for their City Councils,

‘and other agents . . .’’ (55a).°

: Girard 8 contemporaries fully recognized that: “The whole

value of the institution [Girard College] will depend en-

3. Girard made some incidental private bequests and ed the

City of Philadelphja with the duty a administering some of them.

See, ¢.g., Clause XVIII (40a)

4. Assuming there was no other institution then available to be

trustee, that fact in itself is a state-conferred benefit.

However, Girard obviously could have appointed a group of private

citizens with the right of the survivors to fill ies.

5. Italics in all quotations herein have been added.

— a ee

Brief in Opposition to Petition, = 5

tirely upon the administration of it, and that the College

was to be a public charity run by public officials, and sub-

ject to constant public and legislative scrutiny * (809a, 869a,

P-37, P-44). .The following provision of the wil puts this

fact beyond dispute :

„Second, that separate accounts, distinct from the

other accounts of the corporation, shall be kept by the

said corporation, concerning the said devise, bequest,

college and funds, and of the investment and applica-

tion thereof; and that a separate account or accounts

of the same shall be kept in bank, not blended with any

other account, so that it may at all times appear on

examination by a committee of the legislature as here-

inafter mentioned, that my intentions had been fully

- complied with :—Third, that the said corporation ren-

der a detailed account annually in duplicate to the legis-

lature of the Commonwealth of Pennsylvania, at the

commencement of the session, one copy for the senate |

and the other for the house of representatives, concern-

ing the said devised and bequeathed estate, and the

investment and application of the same, and also a re-

port in like manner of the state of the said College, and

shall submit all their books papers and accounts touch-

ing the same, to a committee or committeés of the legis-

lature for examination, when the same shall be re-

quired: Fourth, the said corporation shall also cause

to be published in the month of January, annually, in

two or more newspapers printed in the city of Phila-

delphia, a concise but plain account of the state of the

trusts, devises, and bequests herein declared and made,

6. In 1950 Girard’s Solicitor, in a letter approved by the then-

trustees, said: “Girard College is owned, administered, operated and

maintained by the City of Philadelphia, acting through a municipal

ent, to wit, the Board of Directors of City Trusts” (D-7,

11b).

— —

6 Brief in Opposition to Petition

comprehending the condition of the said college, the

numbér of scholars, and other particulars needful to be

publicly known, for the year next preceeding the said

month of January, annually’’ (63a-64a).

Each year reports are submitted to. the 3 and

published in the newspapers. g

In 1832 the City passed a special resolution accepting

the Girard gifts, including the provisions for the College,

and later in the year passed an Ordinance creating a plan

for selection by the City Councils of a Board to run Girard

College as agents of the City Councils (809a, 869a).

The Estate of Stephen Girard turned over to the City

by his execufors amounted to only six million dollars (810a,

‘ 869a). The principal increased under the management of

the City of Philadelphia, to an amount in excess of ninety

million dollars by 1959, even with the College buildings and

grounds and other real estate owned by Girard at his death

carried on the books of the Estate at no value. The insur-

able value of - the Estate’s physical properties today is

$63, 000, 000, including $42,000,000 applicable to the College

(P-69, 10b). The private executors took their usual: fees

and commissions; the City, een. never received com-

‘pensation for any of its services. 3 .

Béfore the College had parents been | built by the City,

excess income from the Estate was used by the City, as the

Will directed, for general municipal purposes including pay-

ment for police. 7 To this day if there is an excess of income

from trust properties over the needs of the College, such

excess goes to the City. The present trustees themselves

consider this provision, giving money to the City of Phila-

7. Girard provided ii Clause XXIV 3 that the City should be the

remainderman under his Will with contingent remainders to the State

(6 the Federal rae “for the purposes of internal 9

(63a). 9

delphia for other municipal purposes, highly significant to

show public involvement. When they sought to induce the

Federal government to grant the College a tax exemption,

the. application submitted stated: ö

„It is interesting to note that in the event the

Orphans Court should determine at a future date that

the needs of Girard College are amply protected by

f adequate income reserves, excess income will be dis;

tributed to the City of Philadelphia in accordance with

Mr. Girard’s directions.“ (734a) |

Thus the City’s decisions on timing in building and opening ö

the College, its decisions as to the lavishness and complete-

ness of the College, the size of the student body, the salary

scale of the teachers and staff, as to hew much should be

spent for maintenance over the years dnd what reserves,

if any, should be created, all had the effect of depriving the

City of revenues to which it would otherwise have been

entitled for other general municipal use.

| In March, 1833, the City Councils appointed a building

committee for the College consisting of members of Council.

The Council also advertised for plans and offered prizes for

the design of the College buildings. By another 1833 Ordi-

nance the Council authorized appointment of a College

president and appropriated six thousand dollars for his

expensés on a trip to study similar institutions in —

(71a, 73a, 810a-1la, 869a).

On July 4, 1833, the cornerstone of the main 1

building was laid at a ceremony presided over by the Mayor,

Aldermen and Councilmen of the City (811a, 869a). At this

ceremony a scroll containing the namés of the City officials

was deposited in the cornerstone where it remains to this

‘day (ibid.). Following this ceremony the City planned,

caused to be undertaken and supervised the physical con-

oo Opposition to Petition , a

&

8 Brief in Opposition to Petition

struction of all of the buildings as well as the wall at Girard

College. Since the 43 acres left by Girard had been vacant —

farm land, every stone at Girard College Was placed upon

another stone by the City of Philadelphia (ibid.).

Every expenditure for the Girard Estate and for

Girard College between 1832 and 1869 was specifically ap-

proved by a Special ordinance of the City Councils (811a,

869 ). In fact, the records of City Councils reveal that over

the years some 320 special ordinances have been enacted

providing for the operation, management, supervision and

policy of Girard College (70a- 10 2a). Among the various

subjects covered by these numerous ordinances were ones

permitting the admission of new students, determining the

size of the student body and which buildings should be

built, appropriating funds for litigation and reorganizing

from time to time the specific body of directors responsible

for administering the College. In addition the City Coun-

cils provided for a visiting committee of its own members

to undertake supervision (812a-17a, 869a).

The City ultimately completed construction of the Col-

lege buildings in 1847 and the College opened on January 1,

1848. The President of the Board of Directors of the Col-

lege indicated at that ‘time that the Board undertook its

task with the Will of the founder as a guide, assisted by

laws of the State and ordinances of the City Councils (813a,

869a). Indeed, throughout this period the City Councils

exercised minute control over the affairs of the College,

particularly in, connection with the construction of the

-buildings. And after 1851, the City Councils abolished the

trustees of the College and again placed supervision of all

payments ‘under the Councils themselves.

At the same time, the City improved Girard’s real

estate at 12th and Market Streets in Philadelphia, building

such revenue-producing stores as-Snellenburg’s Department

O

Brief in Opposition to Petition 33

Store, which for many years yielded income for use at che

College (736a, 816a, 86 9a). 8

After 1869, the Board of Directors of City Trusts op-

erated the College. The members were agents or officers

of said City’’ (635a). They selected the president and the

faculty, determined the curriculum and the size of the

student body, decided whether buildings were to be. built

or torn down, and managed the investments (635a-638a).

State tax exemption now excuses the College from pay-

ing $401,184 per year (106a, 823, 869a), and Federal tax

exemption (in 1963) $2,640,000 per year (108a, 823a, 869).

Beginning in 1848, and throughout its entire operation

of the College, the City of Philadelphia itself excluded from

Girard College applicants whom it deemed not to be white.

While the City of Philadelphia took the most direct and

active part in building and operating the College, the Com-

monwealth also played an essential role. For example, it

enacted certain enabling legislation contemplated by Gir-

ard’s Will and made necessary because certain provisions

of the Will called for actions of. questionable legal validity

or could not be achieved without specific legislation. Girard

Will Case, 386 Pa. 548, 554, 127 A. 2d 287, 289-90 (1956).

These various. Acts, collected in Exhibit P-51, include

: ones authorizing the City of Philadelphia to act under

Girard’s Will,“ authorizing guardianship ” and indenturing

° «64

* =

mmr Be eae were r > a 928 K 0 . 0 r * 3 W .

275

8. When Snellenburg’s recently (1963) unilaterally cancelled its

lease with the Girard-Estate, the Estate suffered an annual loss of

some $360,000 on the Market Street property (817a). This was

repaired only when the Philadelphia Community College, a govern-

mental body, leased the “white elephant” department store building,

turning the Estate's loss into an annual profit of $304,271 (1b-2b,

817a, 889 ). g :

9. Act of March 24, 1832, P. L. 176, Act of April 4, 1832, P. L.

10. Act of February 27, 1847, P. L. 178, Act of April 20, 1853

§ 6, P. L. 623; Act of May 23, 1887, P. L. 168. When the City was

removed as trustee, the Legislature accommodated the Estate so that

the present Trustees could serve as guardian of the estates of Girard

minors. Act of Nov. 19, 1959, P. L. 1526. See p. 14 infra.

10 Brief in Opposition to Petition

of boys under the Will l and providing that the City should

not place a road or street through the College grounds

(See 817a-19a, 869a).% The Legislature. established a

select committee of the House on the Estate of Stephen

Girard and received annual reports from the trustees of the

College. At various times these reports were printed as ap-

pendices to the Legislative Journals (819a, 869a). |

In 1842 a special committee of the House of Representa- .

tives investigated the state of the College and issued ex-

tensive reports. In 1852, the Legislature directed the State

Secretary to furnish a full set of the Colonial Records to the

College which it retains.* When public outery caused

the Legislature to investigate the College’s operation under

City Council, the Legislature in 1869 enacted a statute

establishing a special agency of the City, the Board of Di-

rectors of City Trusts, to administer the College = (820a,

869 a).

As both school and . the College serves a

public function and has traditionally solicited its students

from the white public at large, with State schools cooperat-

5 ing by recommending eligible white students (868a-69a).

The foregoing history touches only the highlights of

the active participation of City and State in the creation

and perpetuation of Girard College. A fuller presentation

of this history is set forth in plaintiffs’ Request for Find-

ings of Fact in the District Court (807a-23a). These pro-

posed findings were largely granted by the District Court

(869a) and the Court of Appeals held that his findings had

11. Act of Feb. 27, 1847, P. L. 178.

12. Act of March 24, 1832 § 11, P. L. 182; Act of May 3, 1832

§ 18, P. L. 428; Act of March 14, 1846 § 1, P. L. 125.

13. Thus the supposed “private” appearance of the College,

stressed at p. 7 of the trustees’ Petition, is the product of State action.

14. Act of April 2, 1852 § 4, P. L. 237.

15. Act of June 30, 1869, P. L. 1276.

Brief in Opposition to Petition : 11

„full justification in the record’? (A57). Petitioners do

not contest this. In sum these facts demonstrate the

essential point of this case: that but for the activities of

the State, Girard College would not exist. They also

demonstrate that Girard intended his institution to have

_a public character, and the City and- Commonwealth did

everything to effectuate his intention. Indeed if the

physical aspects of the College contributed solely by

Girard could somehow be separated from those to which

the State contributed, of the former there would, remain

only 43 acres of vacant land on Ridge Avenue, Philadelphia,

intersected by numerous city streets, vacant land on the

square at 12th and Market Streets, Philadelphia, and some

$4,500,000 in cash. If the present trustees administered no

more than such.a trust res, they might arguably be ad-

ministering a trust whose admission policies would not be

‘controlled by the Fourteenth Amendment.“

Even under such a hypothesis, however, the trustees

could not eliminate another crucial action by the State

without which racial discrimination would not now exist at

Girard College. This, of course, is the illegal failure of the

State to admit eligible Negroes between the adoption of the

Fourteenth Amendment and 1959. It cannot be disputed

that but for this failure on the part of the City to conform

to the legal requirements of the Fourteenth Amendment

_ when application was made to them by two qualified

‘Negroes in 1954, no racial restriction would exist today at

Girard College. Sweet Briar Institute v. Button, 12 Race

Rel. L. Rep. 1188 (1967).

16. It was no doubt such a situation which Mr. Justice Douglas

hypothesized when he wrote in Evans v. Newton, 382 U. S. at 300:

“If a testator wanted to leave a school or center for the use of one

race only and in no way implicated the State in the supervision, control

or management of that facility, we assume arguendo that no constitu-

ional difficulties would be encounter . 4 ;

12 Brief in Opposition to Petition

In recent years state involvement at Girard College has

taken several further forms. First are the continuing

supervisory functions which the City and State presently

give the College. These are the contacts summarized by

the District Court in its opinions (483a-87a, 862a-65a), in-

cluding reports to the Legislature, tax exemption and super-

‘vision and inspection by the State Departments of *

Instruction and Welfare (483a-&7a).

Additionally, the State Courts have dealt 0 Girard

College in a special way. When this Court determined in

1957 that there was a conflict between the City trusteeship

and the Fourteenth Amendment, Girard was obviously not

alive and present to indicate his personal choice between

_ establishing a school for whites only or continuing the

school under governmental trusteeship. Similarly, no other

private person—heir, beneficiary or other—petitioned the

Orphans’ Court for a substitution of trustee pursuant to

the normal rules of trust law.is Instead, the State Court

itself sua sponte adopted the procedure of removing the

City as trustee and of selecting, appointing and supervising

other sui generis trustees. The Board of City Trusts did

nothing to resist its ouster (638a). As Judge Kalodner

correctly stated in his concurring opinion, this removal by

the Orphans’ Court was done solely for the avowed pur-

pose of carrying out the racial sana clause of

Girard’s Will’’ (A66). °

In the light of this background it is idee that the

present trustees hold offices quite different from those of

the ordinary private trustee, a person or institution specif-

ically named in a will, or a substituted trustee approved by

17. The District Court found as a fact that the College was sub.

ject to the supervision of the Commonwealth (483a-487a).

18. At least in. Evans v. Newton, it was private petitioners

who attempted to have the sd removed as trustee.

Oy

Brief in Opposition to Petition | 13

a court pursuant to the petition of a private person who

has a legal interest in the estate. The present trustees were

selected and appointed sdlely by the Orphans’ Court, just

as the former trustee, the Board of City Trusts was selected

and appointed by the Court of Common Pleas of Philadel-

phia. Six of the present trustees were members of the

Board of City Trusts, a City agency, and one condition of

their appointment here was that they had to resign from

the Board of City Trusts (826a, 869a). The trustees’ in-

tentions were ascertained before the Orphans’ Court en-

tered its order removing the City and appointing them

(825a, 869a). The present trustees were officially sworn in

before the judges of the Orphans’ Court (825a, 869a, 640a,

646a, 9b, P-54), and given a Court-impressed certificate of

appointment, a seal of approval not given any other trustee

(825a-26a, 869a, 647a). Contrary to the usual practice re-

garding trustees, from whom the Orphans’ Court on its own

motion never requires an accounting, in this case the Or-

phans’ Court specifically directed the trustees to render

accountings every year and, ‘subsequently, every three

years (826a, 869a). . Likewise every three years each trustee

must be reappointed, or a successor chosen for him by the

Orphans’ Court. The trustees were originally chosen and

obviously their successors would be chosen, not only for

their ability but according to the essential criterion that

they would never decide to admit Negroes to Girard College.

(678a-79a). Certainly, a trustee who might privately wish

to admit Negroes to the College (see Sweet Briar Institute

v. Button, supra) would necessarily be influenced by the

threat that. the Orphans’ Court would not reappoint him

when his term expired. Finally, the special concern of the

Orphans’ Court for the College and the special treatment

which it has given it, in contrast to that shown all other

Pennsylvania trusts, is indicated by the visits of official

>

14 Brief in Opposition to Petition

inspection’’ paid to the College by the Judges of the Or-

phans’ Court (644a, 645a, 862a, 3b, 4b) and the interest

taken by the judges in the affairs of the College (648a-49a).

For example, i in April 1963, the Orphans’ Court received. a

complaint about the President of the College (648a). ‘The

trustees were informed by Judge Bolger:

‘‘The Court [‘at the conference of the Judges of the

’ Orphans’ Court’] has asked me to request that you give

the matter contained therein the attention which you

think it deserves and kindly let us have your comment”’

(649a, 5b).. N

a investigation was iit by the trustees and reported to

ö the Orphans’ Court (650a, 6b).

Finally, when the substituted trustees found that cer-

tain existing State statutes interfered with their convenient

administration of the trust, the legislature was induced to

act (7b-8b). Act of November 19, 1959, P. L. 1526, Pa. Stat.

Ann. tit. 20, §§ 1144.1-1144.9.. As Judge Van Dusen, con-

ms below, noted: “The Act of November 19, 1959,

authorized ex post facto the Orphans’ Court’s actions

ond further implemented the changeover by fully empower-

ing the new private trustees to serve in place of the Board

of City Trusts as guardians of the boys attending Girard

College and to set up a common trust fund for their prop-

erty”? (A71-A72).” /

On the basis of all these facts, the District Court held

that Girard’s admission policies were governed by the Feur- 7

teenth Amendment, and thus it could not exclude applicants,

otherwise qualified, solely on the basis of race. The Court

of Appeals for the Third Circuit, sitting en banc, unani-

mously affirmed.

Brief in Opposition to Petition 15

REASONS FOR DENYING THE WRIT.

Petitioners have failed to advance any reason as to why

the essentially factual decision of the District Court, unani-

mously .affirmed by the Court of Appeals for the Third

Circuit sitting en banc, merits a time-consuming review by

this Court.” Six Federal judges who have heard this mat-

ter have held that denial of admission of Negroes to Girard

College violates the Fourteenth Amendment. None has

held to the contrary. : *

I. Petitioners Have Presented No Cognizable Ground Un-

der This Court’s Rule 19(1) (b) for Granting Certiorari.

The decision of the court below obviously was not in

conflict with that of another court of appeals nor did it de-

cide a federal question in conflict with applicable decisions

of this Court.” Supreme Court Rule 19(1)(b). Therefore,

Petitioners can only be contending that this case presents

an important question of federal law which has not been,

but should be, settled by this Court. Even a cursory con-

‘sideration of the record in this case will show that no such

question is present. : Pas

The ruling of the District Court here under review was

based upon extensive fact finding as to the massive state in-

19. The Petitioners’ nũsleading quotation from the District

Court’s first decision on a Motion to Dismiss the Complaint, in

‘which the Court —— the “frontiers of the Fourteenth Amend-

ment,” merits little ent. The District Court’s early decision on

the Motion to Dismiss the Complaint did not in fact go to the merits

of the federal issues, referred only to “some” of the constitutional

issues involved, and was made in 1966 before this Court’s decisions

in Reitman v. Mulkey, 387 U. S. 369 or Sweet Briar Institute v. But- «.

ton, 387 U. S. 423, and before the several lower court decisions apply-

ing the Fourteenth Amendment to identical facts. See cases cited page

16 below. ~ ers ae,

20. No decision of this Court since at least 1940 has barred the

admission of Negroes to previously segregated premises.

16 Brief in Opposition to Petition

volvement with Girard College, even apart from the role of

the City as title holder, both before and after the substitu-

tion of trustees in 1959. The Petitioners did not challenge

the sufficiency of the record to support this fact finding and

the. Court of Appeals held that the trial court had made its

findings with full justification in the record’’ (A57). This

Court has traditionally refused to grant certiorari simply to

review findings of fact ae aes by two lower Federal

Courts. :

7 If the factual finding of state inveivement ae then

this case is governed a fortiori by this Court’s ruling in

Pennsylvania v. Board of Direstors, 353 U. S. 230, that the

existence of a testator’s intent does not insulate an institu-

tion from the effect of the Fourteenth Amendment. Evans

vi. Newton, 382 U. S. 296; Sweet Briar Institute v. Button,

12 Race Rel. L. Rep. 388 (1967); Estate of Clayton, No.

5702, Denver, Colo., Probate Court (March 16, 1967 ) (not

reported: Negroes admitted to school established under will

modeled after Girard’s) ; Winsey v. Tate, Dec. Term, No.

946, C. P. Phila. (March 17, 1967) (not reported: since

Fourteenth Amendment applies to Girard College, City may

spend tax funds to conduct instant litigation).

Il. There Is No Merit In Any of Petitioners’ Five Supposed

Reasons for Granting Certiorari.

A. Shelley v. Kraemer. First, Shelley v. Kraemer, 334

U. S. 1, was an alternative ground for the decision below.

Second, in so far as that decision relies on Chelley, it is well

within the Shelley principle. In Shelley the court in ques-

tion merely applied neutral principles of law in a litigation

contested on both ‘sides by private parties. Here the Or-

- phans’ Court of Philadelphia 32 sponte and ex parte

created a device for preventing a willing ‘séller’’ of educa-

tion (the Board of City Trusts, as trustee of Girard College,

which by virtue of this Court’s decree had to be ‘‘willing’’)

— —— — —— —ü—ä—äã— tan

—

Brief in Opposition to Petition 17

from giving such education to willing “buyers”? of the edu-

cation (the Negro applicants). This case is ruled by Shelley

a fortiorari, See also Sweet Briar Institute v. Button, 387

U. S. 423 and, on remand, 12 Race Rel. L. Rep. 388 (1967).

Surely if it was unconstitutional for the Attorney General

of Virginia to seek to prevent Sweet Briar from admitting

Negro girls, as Petitioners concede, it was equally so for the

Orphans’ Court to prevent the City of Philadelphia (or-

- dered by this Court in 1957 to cease discrimination) from

admitting the Negro boys in the first Girard litigation.

B. Evans v. Newton. The undisputed facts set forth

above in the Counterstatement of the Case—when con-

trasted with the bare record in Evans v. V ewton, 382 U. 8.

296, which came before this Court. without an ‘evidentiary

hearing demonstrate without need for further argument

that this case is controlled a fortiori by Evans. It need

only be noted, in connection with Petitioners’ argument

that a park is more public“ than a school, that all states

compel school attendance but certainly do not } compel

the use of parks. ?

C. Reitman v. Mulkey. Petitioners contention that so-

called ‘‘neutral’’ principles of common law were applied to

Girard College by the Orphans’ Court, in contrast to the

constitutional enactment reviewed in Reitman v. Mulkey,

387 U.S. . 369, i is belied by the record here. As J udge Kalod-

ner eorrectly pointed out in his concurring opinion below:

In the instant case, the Orphans’ Court had two

alternative courses of action following the ruling of the

Supreme Court of the United States in Pennsylvania

y. Board of Directors of City Trusts, 353 U. S. 230

(1957), that the Board’s denial of admission to Girard

College of negro male orphans one to the racial

18 Brief in Opposition to Petition

exclusionary clause of Stephen Girard’s Will consti-

tuted state action in violation of the Fourtéenth Amend- f

ment. 5 ; ‘

„The Orphans’ Court could have pursued the

= alternative of directing the Board of Directors of City

Trusts to admit negro orphans to Girard College. In-

stead, it sua sponte pursued the alternative course of -

removing the Board and appointing individual private

trustees in its stead so as to permit continuance of the

’ discriminatory admission policy dictated by Girard’s

Will.“ (A66-67) |

As Judge Kalodner noted, a choice of neutral“ principles

was open and the choice of the one favoring segregation was

therefore a non-neutral act and forbidden by the Fourteenth

. Amendment.

7

they do not contravene the record basis of the factual

findings of the District Court, affirmed by the Court

of Appeals en banc. This Court, reading the Counter-

statement of the Case above, will have no difficulty see-

ing that the state contacts here are enormously greater

than analogous contacts in such recent cases as Burton v.

‘ Wilmington Parking Authority, 365 U. S. 715, Peterson v.

City of Greenville, 373 U. 8. 244, Lombard v. Louisiana, 373

U. S. 267, Robinson v. Florida, 378 U. S. 153 and Mason v.

City of Biloæi, 385 U. S. 370, reversing per curiam 184

Bo. 2d 113 (Miss. 1966).

The history recited in the Counterstatement of the

Case shows an example of the State making possible in

1968 the practice of racial discrimination at an educational

. Burton Revisited. While the trustees 3 1 1

mount a legal attack on the significance of the City’s’

historical and continuing relationship to Girard College,

— ee “

—ͤ—ũ—mũ — op —

e — 2 i

Brief: in — to Petition 1.

institution open to a 1 part of the 1 com-

munity (‘‘any needy fatherless boy—as long as he is

white“ (488a, 867-68a)). This century and one-third

of affirmative State action, including actual construetion |

of the facilities, far exceeds the half century of merely

custodial care by the City of Macon, Georgia, using funds,

of the testator to maintain park grounds in Evans. It far

exceeds the purely ‘‘moral’’ support given private golf

courses and swimming pools to which the state retains only

the right of a reverter. H.g., Hampton v. Jacksonville,

304 F. 2d 320 (5th Cir. 1962). It far exceeds the recent

support given wholly private hospitals which have ac-

- cepted some supplementary State monies. E. g., Eaton v.

Grubbs, 329 F. 2d 710 (4th Cir. 1964). It is incomparably

greater than the possible effect of an ordinance requiring

separate but equal washrooms for restaurant employees

upon a segregationist restaurant owner’s refusal to serve

Negro customers. Robinson v. Florida, supra. In all

these cases the institutions and thé private racial prejudice .

would still exist, even if the State involvement were not

present. Not so with Girard College, where, but for the

actions of the State there would be no institution i in 1968

and no racial discrimination i in 1968.

ZE. The Effect of This Court’s Earlier Mandate. Peti-

tioners’ attempt to argue that this Court 's 1958 denial of

certiorari to review the actions of the Philadelphia Orphans’

Court in substituting ‘‘private’’ trustees in order to pre-

vent admission of Negroes, constituted a substantive ruling ;

“approving that action. One of the clearest precedents in

this Court is that denial of certiorari indicates no ruling on

the merits. E. g. United States v. Carver, 260 U. S. 482, 490;

Polites v. United States, 364 U. S. 426, 433 n. 9. This wale

has been applied equally when a remand is involved. E 9.

. . v. ae, 348 U. S. 222, 228.29. Since this

20 Brief in Opposition to Petition

Court does not grant certiorari and decide major constitu-

tional questions (as in the Board of Directors case supra)

for the purpose of instructing state courts on the proper

common law device by which to perpetuate segregation, the

earlier denial ‘of certiorari obviously reflected one of the

fallowing factors: : ied

1. Much of the history set forth it in the — j

statement of the Case here was not before the Or-

phans’ Court or this Court i in the earlier litigation.

2. No ln Was Minde by the Negro plain-

g tiffs i in the earlier litigation to the substituted“ trus-

tees, and consequently there had been no refusal of

sain of Negroes by those trustees. Thus, the

deral question may not have been properly presented.

See Justice Black's Opinion in Evans v. Newton, 382

U. S. 296; compare Naim v. Naim, 350 U. S. 891, with

Naim v. Naim, 197 Va. 734, 90 S. E. 2d 849 (1956),

and Naim v. Naim, 350 U. S. 985; and see Loving v.

Virginia, 388 * S. 1.

In addition: ’

N 3. The Supreme Court of Georgia in Evans v.

Newton, 220 Ga: 280, 138 S. E. 2d 573 (1965), expressly

held, as the Petitioners now contend, that the denial

of certiorari in the second Board of Directors case

was a holding that this Court had approved substitu-

tion of Trustees as a device for maintaining segrega-

tion. This Court of course reversed. Evans v. Newton,

382 U. 8. 296.

ror Meme ft at , LOM BOL ONE MADOC RIEL MA LEGA LOA EA AAA Wg 5. 1 1 220

Brief in Opposition to Petition 21

CONCLUSION.

For the foregoing reasons, the Petition for a Writ

of Certiorari should be denied. . N N

er 7 Respectfully submitted,

ö Of Counsel: CHARLES J. BolLE,

DRINKER BIDDLE & RkATRH, 1100 Phila. National Bank Building,

J. ALAN KucLLE, Philadelphia, Pa. 19107

HxENRWY S. HILLES, IR.,

* DitwortH, Paxson, KatisH, WILLAAM T. Col RA, In.,

KoRN & Levy, 2600 The Fidelity Building,

Rosert W. Maris. Philadelphia, Pa. 1910

Attorneys for Respondents.

MatTTHEW- W. BULLOCK, In.,

Second Deputy City Solicitor,

_ Epwarp G. Bauer, In.,

City Solicitor,

Levy ANDERSON, s

First Deputy City Solicitor,

1500 Municipal Services Building,

Philadelphia, Pa. 19107

Attorneys for

City of Philadelphia.

Dated May 2, 1968.

* , OLMEDO EDINBORO OME MPI *